DECISIONS

PORT OF PASCO, DECISION 3398-A (PECB, 1990)

IAFF, Local 3173 v. Port of Pasco

           DECISION OF COMMISSION AND CERTIFICATION

This case comes before the Commission on timely objections filed by the Port of Pasco, pursuant to WAC 391-25-590(2), to challenge rulings made by Executive Director Marvin L. Schurke.

BACKGROUND

The union involved, International Association of Fire Fighters, Local 3173, filed a representation petition with the Commission on October 26, 1989.  It sought certifica­tion as exclusive bargaining represen­tative of a bargaining unit it described as:  "All personnel serving as fire fighting personnel for the Tri-Cities Airport excluding supervisory personnel".  The employer objected to the petition.  It contended that the correct description of those employees which the union sought to represent was "maintenance workers or guards"; not "fire fighters". 

After a hearing before Hearing Officer J. Martin Smith on May 23 and 24, 1989, and the filing of post-hearing briefs, the Executive Director determined that a bargaining unit described as:  "All full-time and regular part-time non-supervisory rescue and fire fighting personnel employed at the Tri-Cities Airport" was appropriate.  He expressly refrained from deciding whether the petitioned-for employees were "uniformed personnel" within the meaning of RCW 41.56.030(7).[1]  The Executive Director issued an order on January 23, 1990, directing a cross-check of records to determine whether a majority of the employees in that bargaining unit desired representation by the peti­tioning union. 

POSITIONS OF THE PARTIES

The employer takes issue with the Direction of Cross-Check for two reasons.  First, it contends that a cross-check was unfair, because of the delay that has resulted since membership applications were signed.  The employer believes that such applications may no longer reflect the desires of the bargaining unit employees.  Only an election, it argues, would provide a reasonably current expression of opinion from the bargaining unit's membership.  Second, the employer objects to the fact that the Executive Director left unresolved the principal issue advanced by both parties, i.e., whether the employees at issue are, in fact, "full-time fire fighters" with all the rights that terminology implies.  The employer urges that the omission leaves the parties headed to the bargaining table with no clear idea as to their impasse rights.

The union agrees with the Executive Director's decision, and urges the Commission to affirm it.

DISCUSSION

              The "Full-Time Fire Fighter" Issue

The Executive Director recognized that the parties had devoted most of their energy to arguing over whether the petitioned-for employees are full-time fire fighters.  The employer acknowledges that the petitioned-for employees have a right to organize for the purposes of collective bargaining, without regard to whether they are "uniformed person­nel".  Nevertheless, it strenuously objects to characterization of the bargaining unit as "full-time ... fire fighting personnel".  We can appreciate the employer's concern that sidestepping the issue only postpones it for another day.  There is a benefit in this case, though, to doing that.

The principal reason for the employer's sensitivity regarding the characterization of the bargaining unit is a concern that the individuals therein will thereby qualify for coverage under the Law Enforcement Officers and Fire Fighters (LEOFF) retirement system established by Chapter 41.26 RCW.[2]  The Public Employees' Collec­tive Bargaining Act, Chapter 41.56 RCW, defines "uniformed personnel" by reference to the LEOFF statute.[3]  It is obviously preferable that there be consis­tency in applying the "fire fighter" definition.  In close cases, it also seems prefera­ble that, whenever practicable, the issue first be presented to the agency or official responsible for administering the statute from which the definition is derived.[4]  The bargaining process gives the parties time to do that.  Consequently, we find no error in the fact that the Executive Director chose not to resolve the principal issue advanced by both parties.

Bargaining units are generally described in terms of the work performed by the employees at issue, rather than by their specific job titles.  This is done to avoid subsequent jurisdictional problems in the event a job title is changed.  City of Seattle, Decision 3131-A (PECB, 1989).  In his decision, the Executive Director found that the "community of interest" which binds the petitioned-for employees together is their "rescue and fire fighting" duties, skills and working conditions.  The record certainly supports the finding that such duties are performed.  The record also persuades us that the description of the bargaining unit should be modified in one respect.

Since the Executive Director expressly refrained from deciding whether the employees at issue met the definition of "uniformed personnel" as full-time fire fighters, we believe it is preferable to define the bargaining unit as "all full-time and regular part-time non-supervisory personnel employed by the Port of Pasco at the Tri-Cities Airport who perform rescue and fire fighting duties".  This description, subject to the standard exclusions, eliminates reference to whether the "fire fighting" duties are performed on a "full-time" basis, because that is the very issue which the Executive Director chose not to resolve.

                     The Cross-Check Issue

Chapter 41.56 RCW draws many of its provisions from the federal Labor-Management Relations Act of 1947 (Taft-Hartley Act), but there are also numerous differences between the state and federal collective bargaining laws.  One such difference is in the methodology for determining questions concerning representation.  The statute we administer provides:

     RCW 41.56.060  DETERMINATION OF BARGAIN­ING UNIT‑‑BARGAINING REPRESENTATIVE.  The commission, after hearing upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representative, the unit appropriate for the purpose of collective bargaining.  In deter­mining, modifying, or combining the bargaining unit, the commission shall consider the du­ties, skills, and working conditions of the public employees; the history of collective bargaining by the public employees and their bargaining representatives; the extent of organization among the public employees; and the desire of the public employees.  The commission shall determine the bargaining representative by (1) examination of organiza­tion membership rolls, (2) comparison of signatures on organization bargaining authori­zation cards, or (3) by conducting an election specifically therefor.  [emphasis sup­plied]

RCW 41.56.070 makes it abundantly clear that use of the cross-check is discre­tionary with the Commission:   

     RCW 41.56.070  ELECTION TO ASCERTAIN BARGAINING REPRESENTATIVE.  In the event the commission elects to conduct an election to ascertain the exclusive bargaining representa­tive, and upon the request of a prospective bargaining representative showing written proof of at least thirty percent representa­tion of the public employees within the unit, the commission shall hold an election by secret ballot to determine the issue.  ...  [emphasis supplied]

The Commission has adopted standards for the use of the cross-check method, in WAC 391‑25‑391 and WAC 391‑25‑410.  Arguably, our author­ity to use the cross-check methodology is broader than we have actually utilized.

The Commission has recently had a series of cases come before it involving "cross-check" issues.  The statutory provision for determination of a bargaining representative by cross-check, and the Commission's standards for use of the cross-check method have been extensively discussed in City of Centralia, Decision 3495-A (PECB, 1990) and City of Winslow, Decision 3520-A (PECB, 1990).  As we noted in those cases, directed cross-checks have been infre­quent, because evidence of 70% support has been required as a pre-condition to directing a cross-check.[5]

Where a union demonstrates such substantial support, and the employer refuses to sign an election agreement or cross-check agreement, Commission precedent indicates that the Executive Director should order a cross-check within a reasonable time after the "showing of interest" has been assessed and the description of the bargaining unit has been established.  City of Redmond, Decision 1367-A (PECB, 1982).  We see no reason to deviate from that established prece­dent, particularly in light of actual cross-check results showing that the union had the support of 100% of the employees in the bargaining unit it sought to represent.

The employer argues that decisions made at the time bargaining unit employees authorized representation by the union are not, necessar­ily, the decisions they would make now.  We recognize there may be occasions when employees change their minds regarding union representa­tion.  WAC 391-25-210 precludes withdraw­al of authoriza­tion cards for the purpose of diminishing a "showing of interest", but we do not read that rule as precluding individual employees from withdrawing their authorization cards for purposes of a cross-check.  WAC 391-25-410 contemplates the possibility of turnover or withdrawals of support, by permitting a union faced with losing a cross-check to opt for the conduct of a representa­tion election.  In this case, no bargaining unit employee sought to withdraw their authorization card.  The mere possibility that employees could have had second thoughts does not provide justifi­cation for finding the direction of a cross-check to have been in error.

­There was no issue in Redmond as to the scope of the bargaining unit.  The Commissio­n's only concern about the handling of the Redmond case was the delay caused by the hearing and decision­making process on the "eligibility" issues.[6]  Here, the description of the bargaining unit was at issue, and the Executive Director properly waited until a ruling was made on the unit dispute before directing determina­tion of the question concerning representation by cross-check.  The record well supports the Executive Director's conclu­sion that proceeding to an election in this case would have unnecessarily and unduly delayed determination of the question concerning representation with little likelihood of altering the outcome.  Subject to the modification of the unit description, we therefore find no error in his direction of a cross-check.

NOW, THEREFORE, it is:

                            ORDERED

1.The findings of fact, conclusions of law and direction of cross-check issued by the Executive Director are AFFIRMED, with the modification described herein.

2.On the basis of the findings of fact and conclusions of law, and the results of the cross-check conducted in this matter, it is:

                           CERTIFIED

The employees in the appropriate bargaining unit consisting of:

All full-time and regular part-time non-supervisory personnel employed by the Port of Pasco at the Tri-Cities Airport who perform rescue and fire fighting duties, excluding elected officials, officials appointed for a fixed term, confi­dential employees, supervisors, and all other employees of the employer,

have chosen:

    INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 3173

as their exclusive bargaining representative for the purposes of collective bargaining with their employer with respect to wages, hours and conditions of employment.

Issued at Olympia, Washington, the ______ day of December, 1990.

                        PUBLIC EMPLOYMENT RELATIONS COMMISSION

                        JANET L. GAUNT, Chairperson

                        MARK C. ENDRESEN, Commissioner

                        JOSEPH F. QUINN, Commissioner